Common use of Absence of Defaults and Conflicts Clause in Contracts

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its subsidiaries is (A) in violation of its declaration articles of trustincorporation or bylaws, partnership agreement, charter, bylaws each as amended or similar organizational documents, as the case may be, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any of their its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries is subject (collectively, “Agreements and Instruments”) ), except for any such defaults with respect to this clause (B) that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities, the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) ), and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder and under the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that that, singly or in the aggregate, would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of (I) the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, each as the case may beamended, of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries or of (II) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any subsidiary of its subsidiaries or any of their assets, properties or operations, except for any such violations with respect to this clause (II) as would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in --------------------------------- violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Registrar, Transfer Agency, Dividend Disbursing Agency and Shareholder Servicing Agency Agreement and the Administration Services Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement," the "Custody Agreement," the "Transfer Agency Agreement" and the "Administration Agreement," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not (A) in violation of its declaration certificate of trustincorporation or by-laws (or its equivalent), partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any subsidiary Subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order or decree, except for such violations that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement the Transaction Agreements and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus therein (including the issuance and sale of the Securities by the Company and the use of the proceeds from the sale of the Securities as described therein in the Registration Statement, the Time of Sale Information and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, Company with its obligations under the Operating Partnership and their subsidiaries with their respective obligations hereunder have Transaction Agreements has been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration certificate of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws (or its equivalent) of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any subsidiary Subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trust, partnership agreement, charter, bylaws incorporation or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Sub-Administration Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement," the "Sub-Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or any of their nor its subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractPartnership Document, indenture, mortgage, deed except (solely in the case of trust, loan or credit agreement, note, lease or Partnership Documents other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “Agreements and than Subject Instruments”) except for such defaults that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement by the Partnership and the consummation by the Partnership of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package Statement and the Prospectus (including the issuance and sale of the Securities to be sold by the Partnership pursuant to this Agreement and the use of the proceeds from the sale of the Securities to be sold by the Partnership pursuant to this Agreement as described therein in the Prospectus under the caption “Use of Proceeds”) ), and compliance by the CompanyPartnership with its obligations under this Agreement, the Operating Partnership and their subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, any Partnership Documents, except (solely in the Agreements and Instruments (except case of Partnership Documents other than Subject Instruments) for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Organizational Documents of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder except for such violations of any noteapplicable law, debenture statute, rule, regulations, judgment, order, writ or other evidence decree of indebtedness (any government, government instrumentality or any person acting on such holder’s behalf) court, domestic or foreign, having jurisdiction over the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryof its assets, properties or operations that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation --------------------------------- of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of Neither the Company, Adviser nor the Operating Partnership or any of their subsidiaries Administrator is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, Organizational Documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contractAdviser Document or Administrator Document, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the . The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package Statement and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by each of the Company, Adviser and the Operating Partnership and their subsidiaries Administrator with their respective its obligations hereunder have been duly authorized by all necessary action and under this Agreement do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the Company, Adviser or the Operating Partnership or any subsidiary Administrator pursuant to, the Agreements and Instruments (any Adviser Document or Administrator Document, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration Organizational Documents of trustthe Adviser or the Administrator, partnership agreement, charteras applicable, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, Adviser or the Operating Partnership or any subsidiary Administrator or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement", the "Custodian Agreement," the "Transfer Agency Agreement," and the "Auction Agency Agreement" respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its subsidiaries is in violation of the provisions of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any of their its subsidiaries is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture, the Notes and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated by the Prospectus, the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Notes and the use of the proceeds from the sale of the Securities therefrom as described therein in the Prospectus under the caption “"Use of Proceeds”") and the compliance by the CompanyCompany with its obligations hereunder and under the Indenture, the Operating Partnership Notes and their subsidiaries with their respective obligations hereunder such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any subsidiary of its subsidiaries or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. None (A) The execution, delivery and performance of the CompanyDistribution Agreement, the Operating Partnership Indenture, the Notes, the Funding Agreement, the Administration Agreement, the License Agreement and any other agreement or instrument entered into or issued or to be entered into or issued by the Trust in connection with the issuance of the Notes and the transactions contemplated thereby, (B) the performance of the Trust Agreement (all agreements and instruments referenced in clauses (A) and (B) above are referred to herein as the "ISSUANCE DOCUMENTS"), (C) the consummation of the transactions contemplated in the Time of Sale Prospectus (including the issuance and sale of the Notes and the use of proceeds therefrom as described in the Time of Sale Prospectus) and (D) the compliance by the Trust with its obligations under the Issuance Documents, do not and will not constitute a breach, violation or default which (1) gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of their subsidiaries is in violation all or a portion of its declaration of trust, partnership agreement, charter, bylaws or similar organizational documents, as such indebtedness by the case may beTrust, or in default (2) results in the performance creation or observance imposition of any obligationlien, agreementcharge or encumbrance upon any assets, covenant properties or condition contained in operations of the Trust pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Trust is a party or by which it or any of them may be bound, bound or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)subject, nor will such action result in any violation of the provisions Trust's Certificate of Trust or the declaration of trust, partnership agreement, charter, Trust Agreement and the Trust is not in default in the performance or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or observance of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As ; PROVIDED, that no representation or warranty is made with respect to compliance with law of the Funding Agreement to the extent that the source of the funds used hereinby the Trust to purchase such Funding Agreement renders such funds, a “Repayment Event” means or any event property or condition which gives the holder of any noteinvestment acquired with such funds, debenture subject to governmental seizure or other evidence penalty under the USA Patriot Act of indebtedness 2001, as amended (or any person acting on the "USA PATRIOT ACT"); PROVIDED, FURTHER that in the case of clause (1) of this Section 1.2.4, this representation and warranty shall not extend to such holder’s behalf) the right to require the repurchase, redemption or repayment that would not result in a Trust Material Adverse Effect and in the case of all clause (2) of this Section 1.2.4, this representation and warranty shall not extend to such lien, charges or a portion of such indebtedness by the Company, the Operating Partnership encumbrances or any subsidiaryviolations or defaults that would not result in a Trust Material Adverse Effect.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not (i) in violation of its declaration of trusttrust or by-laws, partnership agreement, charter, bylaws or similar organizational documents, each as the case may beamended from time to time, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectivelytogether with the declaration of trust and by-laws, the “Agreements and Instruments”), except, with respect to (ii) except only, for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement dated as of [—], 2009 between the Fund and the Investment Adviser (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement dated as of February 25, 2005 and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Custodian Agreement”) and the Shareholder Transfer Agency and Service Agreement dated as of October 7, 2002 and effective as of [—], 2009, between the Fund and State Street Bank and Trust Company (the “Transfer Agency Agreement”) and any other material agreements and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trusttrust or by-laws of the Fund, partnership agreement, chartereach as amended from time to time, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trust, partnership agreement, charter, bylaws incorporation or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Sub-Administration Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement", the "Sub-Administration Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trust, partnership agreement, charter, bylaws incorporation or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be is bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Stock Transfer Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement, the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration Articles of trust, partnership agreement, charter, bylaws Incorporation or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the Change. The execution, delivery and performance of this Agreement Agreement, each applicable Terms Agreement, the Indenture, the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the General Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”therein) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary Company action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership or any subsidiary Company pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, organizational documents or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration Articles of trustIncorporation, partnership agreementas amended (the “Charter”), or Bylaws, as amended (the “Bylaws”). The Bank is not in violation of its charter, bylaws or similar other organizational documents, as . Neither the case may be, or Company nor the Bank is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, Company or the Operating Partnership or any of their subsidiaries Bank is a party or by which it or any of them the Bank may be bound, or to which any of the property or assets of the Company, Company or the Operating Partnership or any subsidiary Bank is subject (collectively, “Agreements and Instruments”) except such default that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and therein, and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.any

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trust, partnership agreement, charter, bylaws incorporation or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be is bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement, the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, chartertrust or the by-laws of the Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its agreement and declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Portfolio Management Agreement, the Custodian Agreement and the Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the “Investment Management Agreement,” the “Portfolio Management Agreement,” the “Custodian Agreement” and the “Transfer Agency Services Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the agreement and declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, other than State securities or “blue sky” laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries Subsidiary is in violation of its declaration of trust, partnership agreement, charter, bylaws by-laws or similar organizational documents, as the case may be, other governing instrument ("Governing Instruments") or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Subsidiary is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults of any Agreements or Instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, Company and the Operating Partnership and their subsidiaries with their respective obligations hereunder have been duly authorized by all necessary requisite action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Governing Instruments of the Company, the Operating Partnership or any subsidiary Subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Subsidiary or any of their assets, properties or operations, except for such violations that would not have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company, the Operating Partnership or any subsidiarySubsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except except, with respect to this clause (ii), for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Investment Management Agreement, between the Fund and the Adviser, dated November 13, 2007 (the “Investment Management Agreement”), the Amended and Restated Master Custodian Agreement, between the Fund and State Street Bank and Trust Company, dated February 25, 2005 (the “Custody Agreement”), and the Transfer Agency and Service Agreement, between the Fund and State Street Bank and Trust Company, dated October 7, 2002 (the “Transfer Agency Agreement”, and collectively with the Investment Management Agreement and Custody Agreement, the “Fund Agreements”) and the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws Charter or similar organizational documents, as the case may bebylaws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Administration Agreement, the Custodian Agreement, the Stock Transfer Agency Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement," the "Custodian Agreement" the "Stock Transfer Agency Agreement," and the "Auction Agency Agreement" respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, Charter or bylaws, as the case may be, bylaws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Depositor is not in violation of its declaration of trust, partnership agreement, charter, organizational or charter documents or bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property its properties or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse EffectChange and would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party; and the execution, delivery and performance by the Depositor of this Agreement and Agreement, each Basic Document to which it is a party, the consummation of the transactions contemplated herein and therein, in the Registration Statement, the General Disclosure Package and Statement or in the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries with their respective its obligations hereunder and thereunder have been duly and validly authorized by all necessary corporate or limited liability company action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, "Liens") upon any of its property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, to the Agreements and Instruments (except for such Liens permitted by the Basic Documents and conflicts, breachesbreaches or defaults that, defaults individually or Repayment Events or liensin the aggregate, charges or encumbrances that would will not result in a Material Adverse Effect)Change and would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, its charter or bylaws, as the case may be, of the Company, the Operating Partnership organizational documents or any subsidiary bylaws or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Depositor or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryDepositor.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may bebylaws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Administration Agreement, the Custodian Agreement and the Transfer and Dividend Disbursing Agent and Registrar Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer and Dividend Disbursing Agency and Registrar Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, bylaws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Administration Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement", the "Custodian Agreement", the "Transfer Agency Agreement" and the "Auction Agency Agreement", respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Custody Agreement, the Stock Transfer Agency Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement," the "Custody Agreement," and the "Stock Transfer Agency Agreement" and the "Auction Agency Agreement" respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance performance by the Company, the Operating Partnership and their subsidiaries with their respective Fund of its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with violate or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflictsviolations, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Depositor is not in violation of its declaration of trust, partnership agreement, charter, organizational or charter documents or bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property its properties or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse EffectChange and would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party; and the execution, delivery and performance by the Depositor of this Agreement and Agreement, each Basic Document to which it is a party, the consummation of the transactions contemplated herein and therein, in the Registration Statement, the General Disclosure Package and Statement or in the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries with their respective its obligations hereunder and thereunder have been duly and validly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, "Liens") upon any of its property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, to the Agreements and Instruments (except for such Liens permitted by the Basic Documents and conflicts, breachesbreaches or defaults that, defaults individually or Repayment Events or liensin the aggregate, charges or encumbrances that would will not result in a Material Adverse Effect)Change and would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, its charter or bylaws, as the case may be, of the Company, the Operating Partnership organizational documents or any subsidiary bylaws or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Depositor or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryDepositor.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Trust Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Sub-Investment Advisory Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the “Management Agreement,” the “Sub-Advisory Agreement,” “Custodian Agreement” and the “Transfer Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Trust Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration the Agreement and Declaration of trustTrust or by-laws of the Fund, partnership agreement, charter, bylaws or similar organizational documents, each as the case may beamended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of May 24, 2007 between the Fund and the Investment Adviser (the “Investment Advisory Agreement”), the Investment Management Agreement dated as of May 24, 2007 among the Fund, the Investment Adviser and the Investment Manager (the “Investment Management Agreement”), the Custodian Contract dated as of May 24, 2007 between the Fund and The Bank of New York (the “Custody Agreement”), the Auction Agency Agreement between the Fund and The Bank of New York, dated September [ ], 2007 and the Stock Transfer Agency Agreement dated as of May 24, 2007 between the Fund and The Bank of New York (the “Stock Transfer Agency Agreement”) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary action under the Delaware Statutory Trust Act (the “Delaware Act”) and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the declaration Agreement and Declaration of trustTrust or by-laws of the Fund, partnership agreement, chartereach as amended from time to time, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, other than State securities or “blue sky” laws applicable in connection with the purchase and distribution of the AMPS by the Underwriters pursuant to this Agreement. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “Agreements and Instruments”) except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of Other than as disclosed in the CompanyPublic Disclosure Record or otherwise disclosed to the Agents, neither the Operating Partnership or Corporation nor any of their subsidiaries Material Subsidiary is in violation of its declaration of trustmaterial violation, partnership agreementdefault or breach of, charter, bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the CompanyCorporation with its obligations hereunder and thereunder, each of the sale, issue and delivery (as applicable) of the Unit Shares and Warrants comprising the Offered Units, the Operating Partnership Warrant Shares upon due exercise of the Warrants, the Compensation Options, the Compensation Shares and their subsidiaries Compensation Warrants upon due exercise of the Compensation Options, and the Compensation Warrant Shares upon due exercise of the Compensation Warrants, in accordance with their respective obligations hereunder have been duly authorized by all necessary action and do terms, does not and will not, whether with or without the giving of notice or passage of time or both, conflict with result in a material violation, default or constitute a breach of, or default or Repayment Event (as defined below) underconflict with, or result in a Repayment Event or the creation or imposition of any lien, charge or encumbrance Lien (other than a Permitted Encumbrance) upon any property or assets of the Company, the Operating Partnership Corporation or any subsidiary pursuant toMaterial Subsidiary, including the Business Assets, under the terms or provisions of (i) any Material Agreements and Instruments or material Debt Instruments, (except for such conflictsii) the notice of articles, breaches, defaults articles or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation resolutions of the provisions directors or shareholders of the declaration of trust, partnership agreement, charter, or bylaws, Corporation which are in effect as at the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.date hereof,

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Custody Agreement and the Stocks Transfer Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement", the "Custody Agreement" and the "Stocks Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance performance by the Company, the Operating Partnership and their subsidiaries with their respective Trust of its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with violate or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflictsviolations, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Advisory Agreement, the Administration Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreement," the "Administration Agreement", the "Custodian Agreement", the "Transfer Agency Agreement" and the "Auction Agency Agreement", respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of The Issuer and the Company, the Operating Partnership or any of their subsidiaries is Subsidiaries are not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws their respective charters or similar organizational documents, as the case may be, by-laws or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other material agreement or instrument to which the Company, Issuer or the Operating Partnership or any of their subsidiaries is Subsidiaries are a party or by which it or any of them may be they are bound, or to which any of the property or assets of the Company, Issuer or the Operating Partnership or any subsidiary is Subsidiaries are subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the ). The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Shares, Warrants and Placement Agent Warrants and the use of the proceeds from the sale of the Securities Shares, Warrants and Placement Agent Warrants as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Issuer with their respective its obligations hereunder have been duly authorized by all necessary corporate action by the Issuer and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, Issuer or the Operating Partnership or any subsidiary Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the CompanyIssuer or the Subsidiaries, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyIssuer or the Subsidiaries, the Operating Partnership or any subsidiary or any of their respective assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None Neither the Company nor any --------------------------------- of the Company, the Operating Partnership or any of their its subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any of their its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the Indenture and the consummation of the transactions contemplated herein herein, in the Indenture and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”Securities) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder and under the Indenture have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any subsidiary or any of their assets, properties assets or operationsproperties. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operationsoperations except for any such violation that could not be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.Repayment

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Time of Sale Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operationsoperations except for any such violation that could not be expected to result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and InstrumentsAGREEMENTS AND INSTRUMENTS”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the CompanyFund pursuant to the Investment Advisory Agreement, the Operating Partnership or any subsidiary pursuant toCustody Agreement, the Stock Transfer Agency Agreement, the Fund Administration Servicing Agreement and the Fund Accounting Servicing Agreement referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” the “Stock Transfer Agency Agreement,” the “Fund Administration Servicing Agreement,” and the “Fund Accounting Servicing Agreement,” respectively and collectively the “FUND AGREEMENTS”) and the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.a

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws the Articles or similar organizational documents, as the case may be, Fund’s by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) ), except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Custodian Agreement, the Transfer Agency Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the “Advisory Agreement,” the “Administration Agreement,” the “Custodian Agreement,” the “Transfer Agency Agreement” and the “Auction Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charterArticles or the Fund’s by-laws, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation --------------------------------- of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations" respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, chartertrust or the by-laws of the Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration Articles of trustIncorporation, partnership agreementas amended (the “Charter”), or Bylaws, as amended (the “Bylaws”). The Bank is not in violation of its charter, bylaws or similar other organizational documents, as . Neither the case may be, or Company nor the Bank is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, Company or the Operating Partnership or any of their subsidiaries Bank is a party or by which it or any of them the Bank may be bound, or to which any of the property or assets of the Company, Company or the Operating Partnership or any subsidiary Bank is subject (collectively, “Agreements and Instruments”) except such default that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and therein, and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.conflict

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws Charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Custodian Agreement", the "Transfer Agency Agreement" and the "Auction Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, Declaration or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not (A) in violation of its declaration of trustcharter or by-laws, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “"Agreements and Instruments”") or (C) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operations ("Applicable Laws"), except in the case of clauses (B) or (C) for such defaults that would not be reasonably likely to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein described in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as in the manner described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) (except for the Company's obligations to repay amounts outstanding under its subordinated promissory notes as disclosed in the Prospectus) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, as such shall be in effect at the Operating Partnership applicable time, or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their assets, properties or operationsApplicable Laws. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries CNX Parties is (i) in violation of its declaration of trust, partnership agreement, charter, bylaws Organizational Documents or similar organizational documents, as the case may be, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contemplated by the Transactions or contained in any contractCNX Document, indentureexcept, mortgagein the case of clause (ii), deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “Agreements and Instruments”) except for such defaults that would not not, individually or in the aggregate, result in a Material Adverse Effect; Effect or materially and adversely affect the consummation of the transactions contemplated in this Agreement (including the Transactions). The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein (including the Transactions) and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities Units and the use of the proceeds from the sale of the Securities Units as described therein in the preliminary prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries CNX Parties party hereto with their respective obligations hereunder have been duly authorized by all necessary action and under this Agreement (including the Transactions) do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, of or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance Lien upon any property or assets of the CompanyPartnership Entities pursuant to any CNX Documents, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances Liens that would not not, individually or in the aggregate, result in a Material Adverse EffectEffect or materially and adversely affect the consummation of the transactions contemplated in this Agreement (including the Transactions), nor will such action result in any violation of (A) the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, Organizational Documents of the Company, the Operating Partnership CNX Parties or any subsidiary or of (B) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary CNX Parties or any of their respective assets, properties or operations. As used herein, except, in the case of clause (B), for such violations that would not, individually or in the aggregate, result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryMaterial Adverse Effect.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws Charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Sub-Administration Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the “Management Agreement,” the “Administration Agreement,” the “Sub-Administration Agreement,” the “Custodian Agreement,” the “Transfer Agency Agreement” and the “Auction Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, Charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may beby-laws, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except except, with respect to this clause (ii), for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus this Agreement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Investment Advisory Agreement, between the Fund and the Adviser, dated September 15, 2009 (the “Investment Advisory Agreement”), the Custody Agreement, between the Fund and U.S. Bank National Association, dated May 25, 2005, as amended May 24, 2010 (the “Custody Agreement”), the Stock Transfer Agency Agreement, between the Fund and Computershare Investor Services, LLC, dated May 10, 2005, as amended by that certain addendum thereto between the same parties dated as of November 20, 2009, and as further amended February 10, 2011 (the “Stock Transfer Agency Agreement”), the Fund Administration Servicing Agreement, between the Fund and U.S. Bancorp Fund Services, LLC, dated May 25, 2005, as amended by that certain addendum thereto between the same parties dated as of October 24, 2007, and as further amended May 24, 2010 (the “Fund Administration Servicing Agreement”) and the Fund Accounting Servicing Agreement, between the Fund and U.S. Bancorp Fund Services, LLC, dated September 5, 2006, as amended May 24, 2010 (the “Fund Accounting Servicing Agreement”, and collectively with the Investment Advisory Agreement, Custody Agreement, Stock Transfer Agency Agreement and the Fund Administration Servicing Agreement, the “Fund Agreements”) and the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trustincorporation or by-laws, partnership agreement, charter, bylaws or similar organizational documents, each as the case may beamended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be is bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Administration Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trustincorporation or by-laws of the Fund, partnership agreement, chartereach as amended from time to time, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trustthe Statement or by-laws, partnership agreement, charter, bylaws each as amended or similar organizational documents, as the case may besupplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of March 29, 1999 between the Fund and the Adviser, the Mutual Fund Custody and Services Agreement dated as of September 10, 2001 between Fund and The Bank of New York Mellon Corporation and the Transfer Agency and Service Agreement, dated as of January 1, 2011 among the Fund, Computershare Trust Company, N.A. and Computershare Inc., referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement” and the “Transfer Agency Agreement,” respectively and collectively the “Offering Agreements”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in (i) any violation of the provisions of the declaration of trust, partnership agreement, charter, Statement or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of (ii) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, except with respect to (ii) only for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in --------------------------------- violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations" respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, chartertrust or the by-laws of the Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the issuance and sale of the Offered Securities and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Offered Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, individually the "Investment Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency" and "Service Agreement," respectively and collectively the "Offering Agreements") and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement dated as of January , 2007 between the Fund and the Investment Adviser (the “Advisory Agreement”), the Transfer Agency Agreement dated as of January , 2007 between the Fund and The Bank of New York (the “Transfer Agency Agreement”), and the Custody Agreement dated as of September 21, 2001, as amended as of January , 2007, between the Fund and State Street Bank and Trust Company (the “Custody Agreement”) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (collectively, the “Laws” except for such Laws which would not have a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement dated as of [ ], 2007 between the Fund and the Investment Adviser (the “Advisory Agreement”), the Transfer Agency Agreement dated as of [ ], 2007 between the Fund and The Bank of New York (the “Transfer Agency Agreement”), and the Custody Agreement dated as of September 21, 2001, as amended as of January 24, 2007, between the Fund and State Street Bank and Trust Company (the “Custody Agreement”) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (collectively, the “Laws” except for such Laws which would not have a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of --------------------------------- its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement, the Auction Agent Agreement and the Letter of Representations referred to in the Registration Statement (as used herein, the "Advisory Agreement", the "Custody Agreement," the "Auction Agreement" and the "Letter of Representations," respectively) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Depositor is not in violation of its declaration of trust, partnership agreement, charter, organizational or charter documents or bylaws or similar organizational documents, as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property its properties or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse EffectChange and would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party; and the execution, delivery and performance by the Depositor of this Agreement and Agreement, each Basic Document to which it is a party, the consummation of the transactions contemplated herein and therein, in the Registration Statement, the General Disclosure Package and Statement or in the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries with their respective its obligations hereunder and thereunder have been duly and validly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge mortgage, pledge, charge, encumbrance, adverse claim or encumbrance other security interest (collectively, “Liens”) upon any of its property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, to the Agreements and Instruments (except for such Liens permitted by the Basic Documents and conflicts, breachesbreaches or defaults that, defaults individually or Repayment Events or liensin the aggregate, charges or encumbrances that would will not result in a Material Adverse Effect)Change and would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, its charter or bylaws, as the case may be, of the Company, the Operating Partnership organizational documents or any subsidiary bylaws or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Depositor or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryDepositor.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such defaults that do not involve Material Fund Agreements (as defined below) and material instruments that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement or the Investment Advisory Agreement dated as of ___ among ___, the Custodian Agreement dated as of ___ among ___, the Registrar, Transfer Agent and Service Agreement dated as of ___ among ___, and the Dividend Reinvestment and Cash Repurchase Plan dated as of ___ (each, a “Material Fund Agreement”) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments any Material Fund Agreement (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, except for violations that would not result in a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryMaterial Adverse Effect.

Absence of Defaults and Conflicts. None The Company is not in violation of its Restated Certificate of Incorporation, as amended (the “Charter”), or Amended and Restated Bylaws, as amended (the “Bylaws”); none of the Company, the Operating Partnership or any of their subsidiaries Subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws or similar other organizational documents, as documents and neither the case may be, or Company nor any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any of their subsidiaries its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any subsidiary Subsidiary is subject (collectively, “Agreements and Instruments”) ), or in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except in each case for such violations or defaults that would not not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and therein, and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.corporate

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trustthe Statement or by-laws, partnership agreement, charter, bylaws each as amended or similar organizational documents, as the case may besupplemented to date, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults (A) that do not involve Offering Agreements (as defined below) and (B) that would not not, individually or in the aggregate, result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement dated as of June 14, 2007, the Mutual Fund Custody and Services Agreement dated as of June 29, 2007 and the Transfer Agency and Service Agreement dated as of January 1, 2011 referred to in the Registration Statement (as used herein, individually the “Investment Advisory Agreement,” the “Custody Agreement,” and the “Transfer Agency Agreement,” respectively and collectively the “Offering Agreements”) and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Preliminary Prospectus and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Offering Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, Statement or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, except for such violations that would not, individually or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement dated as of [•], 2006 between the Fund and the Investment Adviser (the “Advisory Agreement”), the Transfer Agency Agreement dated as of March 8, 2006 between the Fund and The Bank of New York (the “Transfer Agency Agreement”), and the Custody Agreement dated as of September 21, 2001, as amended as of April [•], 2006, between the Fund and State Street Bank and Trust Company (the “Custody Agreement”) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (collectively, the “Laws” except for such Laws which would not have a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement and the Administration Agreement and the consummation of the transactions contemplated herein and therein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary action and thereunder do not and will not, whether with or without the giving of notice or passage of time or both, (A) conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Company pursuant to, the Agreements and Instruments (Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not reasonably be expected to result in a Material Adverse Effect), or (B) conflict with or constitute a breach of, or default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which Ares is a party or by which Ares may be bound, or to which any of the property or assets of Ares Management LLC ("Ares") is subject, or the limited partner agreement or other governing documents of any fund managed by, advised by or affiliated with Ares, except for such conflicts, breaches or defaults that would not reasonably be expected to result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Fund is a party or by which it or any of them its properties may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory and Management Agreement dated as of [ ], 2007 between the Fund and the Investment Adviser (the “Advisory Agreement”), the Transfer Agency Agreement dated as of [ ], 2007 between the Fund and The Bank of New York (the “Transfer Agency Agreement”), and the Custody Agreement dated as of September 21, 2007, between the Fund and State Street Bank and Trust Company (the “Custody Agreement”) and the consummation of the transactions contemplated herein in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder under this Agreement have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or a default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, to the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration charter or the by-laws of trust, partnership agreement, charterthe Fund, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (collectively, the “Laws” except for such Laws which would not have a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or any of their subsidiaries Company nor its subsidiary is (a) in violation of its declaration of trustcharter or by-laws, partnership agreement, charter, bylaws or similar organizational documents, as the case may be, or (b) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any of their subsidiaries its subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any its subsidiary is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result or (c) in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the CompanyCompany or its subsidiary or any of their assets, properties or operations, except for such defaults or violations in the case of clauses (b) and (c) that could not result in a Material Adverse Effect. The execution, delivery and performance of this Agreement, the Operating Partnership Registration Rights Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Offering Memorandum under the caption "Use of Proceeds" and the issuance of the shares of Common Stock issuable upon conversion of the Securities) and compliance by the Company with its obligations hereunder and under the Registration Rights Agreement, the Indenture and the Securities have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or a Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiary pursuant to, the Agreements and Instruments except for such conflicts, breaches or defaults or liens, charges or encumbrances that, singly and in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or by-laws of the Company or its subsidiary or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or its subsidiary or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any its subsidiary.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration Articles of trust, partnership agreement, charter, bylaws Incorporation or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property assets, properties or assets operations of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “Agreements and Instruments”) ), except for such defaults that would not result in a Material Adverse Effect; and the Change. The execution, delivery and performance of this Agreement Agreement, each applicable Terms Agreement, the Indenture, the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Registration Statement, the General Disclosure Package and the Prospectus and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”therein) and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder and thereunder have been duly authorized by all necessary company action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property assets, properties or assets operations of the Company, the Operating Partnership or any subsidiary Company pursuant to, the any Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, organizational documents or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Company or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.

Absence of Defaults and Conflicts. None The Trust is not in violation of the Companytrust certificate of the Trust filed with the State of Delaware (the "Trust Certificate") or the Trust Agreement, and neither the Operating Partnership or Company nor any of their subsidiaries its Subsidiaries is in violation of its declaration Articles of trust, partnership agreementIncorporation, charter, bylaws by-laws, certificate of formation, trust agreement or other similar organizational documentsdocument; none of the Trust, as the case may be, Company or any of its Subsidiaries is in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease lease, permit, license, franchise agreement, debenture, deed of trust or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “"Agreements and Instruments”) "), and no other party to any Agreement or Instrument is in material default thereunder, except for such defaults under Agreements and Instruments that would not result in a Material Adverse Effect; and (A) the execution, delivery and performance of this the Operative Documents and the Merger Agreement by the Trust or the Company, as the case may be, (B) the issuance, sale and delivery of the Common Securities and the Securities, (C) the consummation of (x) the transactions contemplated herein by the Operative Documents and in (y) the Registration StatementMerger, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”D) and compliance by the CompanyOfferors with the terms of the Operative Documents and the Merger Agreement to which they are a party have been duly authorized by all necessary corporate action on the part of the Company and, with respect to the Operating Partnership matters described in sub-clauses (A), (B), (C)(x) and their subsidiaries with their respective obligations hereunder (D) of this Agreement, at the Closing Time and any Date of Delivery, will have been duly authorized by all necessary action on the part of the Trust, and do not none of the actions referred to in sub-clauses (A) through (C) above violate, conflict with or constitute a breach of or, default or Repayment Event (as defined below), and will not, whether with or without the giving of notice or passage of time or both, violate, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any security interest, mortgage, pledge, lien, charge charge, encumbrance or encumbrance equitable right upon any property or assets of the CompanyTrust, the Operating Partnership Company or any subsidiary of the Subsidiaries pursuant to, to the Agreements and Instruments (except for such conflicts, breachesviolations, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration Articles of trust, partnership agreementIncorporation, charter, by-laws, certificate of formation, trust agreement or bylaws, as the case may be, other similar document of the Company, the Operating Partnership Company or any subsidiary of its Subsidiaries or the Trust Agreement or the Trust Certificate or violation by the Company or any of its Subsidiaries of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government authority, agency or instrumentality or court, domestic or foreign, having jurisdiction over the Companyincluding, without limitation, the Operating Partnership Board of Governors of the Federal Reserve System (the "FRB"), the Division of Finance, and the FDIC (each, a "Governmental Entity"). To the best knowledge of the Offerors, no other party under any other Agreements and Instruments is in material default thereunder except for such defaults as would not individually or any subsidiary or any of their assets, properties or operationsin the aggregate result in a Material Adverse Effect. As used hereinin this Agreement, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the CompanyTrust, the Operating Partnership Company or any subsidiaryof the Company's Subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, individually the "Investment Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency and Service Agreement," respectively and collectively the "Offering Agreements") and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may bebylaws, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except except, with respect to this clause (ii) for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement between U.S. Bank National Association (“Custodian”) and the Fund (the “Custodian Agreement”), the Stock Transfer Agency Agreement between Computershare Trust Company, N.A. (the “Transfer Agent”) and the Fund (the “Transfer Agency Agreement”), and the Administration Agreement between U.S. Bancorp Fund Services, LLC (the “Administrator”) and the Fund (the “Administration Agreement”) (this Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement and the Administration Agreement being referred to herein collectively as the “Fundamental Agreements”) and the consummation of the transactions contemplated herein in the Fundamental Agreements, the Plan and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus and the Time of Sale Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Fundamental Agreements and Instruments or the Plan (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, bylaws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws the Articles or similar organizational documents, as the case may be, Fund's by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, each Investment Co-Advisory Agreement with BIA and with SIA, the Administration Agreement, the Custodian Agreement, the Investment Company Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the "Advisory Agreements," the "Administration Agreement," the "Custodian Agreement," the "Transfer Agency Agreement" and the "Auction Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charterArticles or the Fund's by-laws, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, except for such violations that would not have a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Manager is not in --------------------------------- violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “for purposes of this paragraph, "Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the International Purchase Agreement and the Management Agreement and the consummation of the transactions contemplated herein herein, in the International Purchase Agreement, in the Management Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Manager with their respective its obligations hereunder and under the International Purchase Agreement and the Management Agreement, have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Manager pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Manager or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Manager or any of their its assets, properties or operations, except for such violations which, singly or in the aggregate, would result in a Material Adverse Effect. As used hereinin this Section, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryManager.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws Charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Sub-Administration Agreement, the Custodian Agreement, the Stock Transfer Agency Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the “Management Agreement,” the “Administration Agreement,” the “Sub-Administration Agreement,” the “Custodian Agreement,” the “Stock Transfer Agency Agreement” and the “Auction Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, Charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws Charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Administration Agreement, the Sub-Administration Agreement, the Investment Management Agreement, the Custodian Agreement, the Transfer Agent and Service Agreement and the Auction Agency Agreement referred to in the Registration Statement (as used herein, the “Administration Agreement,” the “Sub-Administration Agreement,” the “Management Agreement,” the “Custodian Agreement,” the “Transfer Agency Agreement” and the “Auction Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities AMPS and the use of the proceeds from the sale of the Securities AMPS as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, Charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s xxxxxx's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trustincorporation or by-laws, partnership agreement, charter, bylaws or similar organizational documents, each as the case may beamended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Administration Agreement, the Custodian Agreement, and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trustincorporation or by-laws of the Fund, partnership agreement, chartereach as amended from time to time, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Trust Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Sub-Advisory Agreement", the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Trust Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its agreement and declaration of trusttrust or by-laws, partnership agreement, charter, bylaws or similar organizational documents, each as the case may beamended from time to time, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Administrative Services Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, the "Management Agreement," the "Administrative Services Agreement," the "Custodian Agreement" and the "Transfer Agency Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation (except for such violations that will not result in a Material Adverse Effect) of the provisions of the agreement and declaration of trusttrust or by-laws of the Fund, partnership agreement, chartereach as amended from time to time, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of Neither the Company, the Operating Partnership or Company nor any of their its subsidiaries is in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership Company or any of their its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries is subject (collectively, “"Agreements and Instruments”") except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, the Indenture and the Securities and any other agreement or instrument entered into or issued or to be entered into or issued by the Company in connection with the transactions contemplated hereby or thereby or in the Offering Memorandum and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Offering Memorandum (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Offering Memorandum under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and (a) do not and will not, whether with or without the giving of notice or passage of time or both, (1) conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property properties, assets or assets operations of the Company, the Operating Partnership Company or any subsidiary of its subsidiaries pursuant to, or (2) constitute a Repayment Event (as defined below) under, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect)Instruments, nor (b) will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Company or any subsidiary charters, bylaws and similar organizational documents of its subsidiaries or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any subsidiary of its subsidiaries or any of their assets, properties or operations, except in the case of clause (a), subclause (1) above, for any conflict, breach, default, lien, charge or encumbrance as would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership Company or any subsidiaryof its subsidiaries.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Company is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries Company is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Company is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Company with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of (A) any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership Company or any subsidiary or any of their assets, properties or operationsoperations except for such violations that would not result in a Material Adverse Effect or (B) the provisions of the charter or by-laws of the Company or any subsidiary. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.a

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Trust is not in violation of its declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Trust is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Trust Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Management Agreement, the Sub-Advisory Agreement, the Custodian Agreement and the Transfer Agent and Service Agreement referred to in the Registration Statement (as used herein, the “Management Agreement,” the “Sub-Advisory Agreement”, the “Custodian Agreement” and the “Transfer Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Trust with their respective its obligations hereunder have been duly authorized by all necessary trust action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Trust pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Trust Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Trust or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Trust or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryTrust.

Absence of Defaults and Conflicts. None of Neither the Company, Company nor the Operating Partnership or any of their Bank and its subsidiaries considered as one enterprise is in violation of its declaration of trust, partnership agreement, charter, bylaws respective charter or similar organizational documents, as the case may be, by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the its property or assets of the Company, the Operating Partnership or any subsidiary is subject (collectively, “"Agreements and Instruments”) "), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, Company and the Operating Partnership and their subsidiaries Bank with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any of their respective property or assets of the Company, the Operating Partnership or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, their respective charter or bylaws, as the case may be, of the Company, the Operating Partnership by-laws or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary them or any of their assets, properties or operations. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the CompanyCompany or the Bank, the Operating Partnership or any subsidiaryas applicable.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trust, partnership agreement, charter, bylaws incorporation or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Administration Agreement, the Sub-Administration Agreement, the Custodian Agreement and the Stock Transfer Agency Agreement referred to in the Registration Statement (as used herein, the “Management Agreement,” the “Administration Agreement,” the “Sub-Administration Agreement,” the “Custodian Agreement” and the “Stock Transfer Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its agreement and declaration of trust, partnership agreement, charter, bylaws trust or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Portfolio Management Agreement, the Custodian Agreement and the Transfer Agency Services Agreement referred to in the Registration Statement (as used herein, the "Investment Management Agreement," the "Portfolio Management Agreement," the "Custodian Agreement" and the "Transfer Agency Services Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the agreement and declaration of trust, partnership agreement, charter, trust or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, other than State securities or "blue sky" laws applicable in connection with the purchase and distribution of the Securities by the Underwriters pursuant to this Agreement. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trust, partnership agreement, charter, bylaws incorporation or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Advisory Agreement and the Administration Agreement referred to in the Registration Statement, the Custodian Services Agreement, dated as of [ ], 2003 between the Fund and PFPC Trust Company, and the Transfer and Dividend Disbursing Agent and Registrar Agreement, dated as of [ ], 2003 between the Fund and PFPC, Inc., (as used herein, the "Advisory Agreement," the "Administration Agreement," the "Custodian Services Agreement" and the "Transfer Agency And Registrar Agreement," respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the CompanyFund, the Operating Partnership or nor will such action result in any subsidiary or violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations, except for such violations that would not result in a Material Adverse Effect. As used herein, a “"Repayment Event” " means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s 's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “"Agreements and Instruments”") except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Administration Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement referred to in the Registration Statement (as used herein, individually the "Investment Advisory Agreement," the "Administration Agreement," the "Custodian Agreement" and the "Transfer Agency and Service Agreement," respectively and collectively the "Offering Agreements") and the consummation of the transactions contemplated herein in the Offering Agreements and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus under the caption “"Use of Proceeds”") and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, or bylaws, as the case may be, of the Company, the Operating Partnership or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary or any of their assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiary.Material

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may beby-laws, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except except, with respect to this clause (ii) for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Advisory Agreement, the Custody Agreement between U.S. Bank National Association (“Custodian”) and the Fund (the “Custodian Agreement”), the Transfer Agency and Service Agreement between Computershare Trust Company, N.A. (the “Transfer Agent”) and the Fund (the “Transfer Agency Agreement”), and the Administration Agreement between U.S. Bancorp Fund Services, LLC (the “Administrator”) and the Fund (the “Administration Agreement”) (this Agreement, the Investment Advisory Agreement, the Custodian Agreement, the Transfer Agency Agreement and the Administration Agreement being referred to herein collectively as the “Fundamental Agreements”) and the consummation of the transactions contemplated herein in the Fundamental Agreements, the Plan and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the Prospectus and the Time of Sale Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Fundamental Agreements and Instruments or the Plan (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not in violation of its declaration articles of trust, partnership agreement, charter, bylaws incorporation or similar organizational documents, as the case may beby-laws, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Investment Management Agreement, the Sub-Administration Agreement, the Custodian Agreement and the Stock Transfer Agency Agreement referred to in the Registration Statement (as used herein, the “Management Agreement,” the “Sub-Administration Agreement,” the “Custodian Agreement” and the “Stock Transfer Agency Agreement,” respectively) and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration articles of trust, partnership agreement, charter, incorporation or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operations. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.

Absence of Defaults and Conflicts. None of the Company, the Operating Partnership or any of their subsidiaries The Fund is not (i) in violation of its declaration of trust, partnership agreement, charter, bylaws charter or similar organizational documents, as the case may beby-laws, or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any of their subsidiaries it is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any subsidiary Fund is subject (collectively, “Agreements and Instruments”) except except, with respect to this clause (ii), for such violations or defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement Agreement, and the Alternative Distribution Agreement, and the consummation of the transactions contemplated herein in this Agreement and the Alternative Distribution Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus Statement (including the issuance and sale of the Securities Shares and the use of the proceeds from the sale of the Securities Shares as described therein in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company, the Operating Partnership and their subsidiaries Fund with their respective its obligations hereunder thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any subsidiary Fund pursuant to, the Investment Advisory Agreement, between the Fund and the Adviser, dated September 15, 2009 (the “Investment Advisory Agreement”), the Custody Agreement, between the Fund and U.S. Bank National Association, dated May 25, 2005 (the “Custody Agreement”), the Stock Transfer Agency Agreement, between the Fund and Computershare Investor Services, LLC, dated May 10, 2005, as amended by that certain addendum thereto between the same parties dated as of November 20, 2009 (the “Stock Transfer Agency Agreement”), the Fund Administration Servicing Agreement, between the Fund and U.S. Bancorp Fund Services, LLC, dated May 25, 2005, as amended by that certain addendum thereto between the same parties dated as of October 24, 2007 (the “Fund Administration Servicing Agreement”) and the Fund Accounting Servicing Agreement, between the Fund and U.S. Bancorp Fund Services, LLC, dated September 5, 2006 (the “Fund Accounting Servicing Agreement”, and collectively with the Investment Advisory Agreement, Custody Agreement, Stock Transfer Agency Agreement and the Fund Administration Servicing Agreement, the “Fund Agreements”) and the Agreements and Instruments (except for such conflicts, breaches, breaches or defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the declaration of trust, partnership agreement, charter, charter or bylaws, as the case may be, by-laws of the Company, the Operating Partnership Fund or any subsidiary or of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any subsidiary Fund or any of their its assets, properties or operationsoperations (except for such violations that would not result in a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company, the Operating Partnership or any subsidiaryFund.